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24:0577(61)CA - NG Bureau and ACT -- 1986 FLRAdec CA

[ v24 p577 ] 24:0577(61)CA
The decision of the Authority follows:

24 FLRA No. 61
NATIONAL GUARD BUREAU
Respondent
and
ASSOCIATION OF CIVILIAN
TECHNICIANS
Charging Party/Union
Case No. 3-CA-60128
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on a stipulation of facts by the parties, who have
agreed that no material issue of fact exists. Briefs for the
Authority's consideration were filed by the Respondent and the General
Counsel.
The complaint alleges that the National Guard Bureau (Respondent)
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by instituting a
substantive change in conditions of employment without affording the
Charging Party, Association of Civilian Technicians (ACT), prior notice
and a reasonable time to present its views and recommendations regarding
the change, pursuant to its previously granted national consultation
rights, as required by section 7113 of the Statute. Specifically, by
memorandum to all Adjutants General dated June 21, 1985, the Respondent
implemented an expansion of its "Mix-of-the-Force" policy without prior
notice to ACT. The expanded policy allows non-bargaining unit Active
Guard/Reserve Military personnel to fill certain bargaining unit
technician positions formerly occupied solely by civilian technicians.
II. Facts of the Case
At all times material herein, ACT has been granted national
consultation rights by the National Guard Bureau under section 7113 of
the Statute. By memorandum to the Adjutants General of all States,
Puerto Rico, the Virgin Islands, Guam and the Cistrict of Columbia dated
June 21, 1985, the National Guard Bureau implemented an expansion of its
Mix-of-the-Force policy. /1/ Paragraph 5(b) of the policy announcement
listed twelve (12) job classifications which could be filled by Active
Guard/Reserve Military personnel. The twelve (12) job classifications
were positions which had previously been reserved exclusively for
civilian technicians.
III. The Issue
The issue in this case is whether the National Guard Bureau violated
section 7116(a)(1) and (5) of the Statute by issuing, without consulting
with ACT under section 7113 of the Statute, the June 21, 1985
Memorandum.
VI. Positions of the Parties
The arguments of the parties are essentially the same as those set
forth in National Guard Bureau, 22 FLRA No. 90 (1986). In summary, the
Agency asserts that it had no obligation to consult with ACT under
section 7113 because the memorandum would have no actual immediate
impact and little, if any, forseeable impact on bargaining unit
employees. The General Counsel argues that through the memorandum the
Respondent instituted a substantive change in conditions of employment
of certain bargaining unit employees without fulfilling its obligations
under section 7113 of the Statute.
V. Analysis
This case, like National Guard Bureau, 22 FLRA No. 90 (1986),
involves the application of section 7113 of the Statute. Section
7113(b)(1) of the Statute requires an agency to inform a labor
organization having national consultation rights with the agency of any
substantive changes in conditions of employment proposed by the agency
and to provide the labor organization with reasonable time to present
its views and recommendations regarding the changes and to consider such
views and recommendations before taking final action.
As noted in National Guard Bureau, in order for the consultation
obligation set forth in section 7113(b)(1) of the Statute to apply,
there must be a substantive change in conditions of employment. Section
7103(a)(14) of the Statute defines conditions of employment as
"personnel policies, practices, and matters, whether established by
rule, regulation or otherwise, affecting working conditions(.)"
This case involves the same circumstances and arguments as involved
in National Guard Bureau. /2/ For the reasons expressed in that case we
find that the Agency's June 21, 1985 policy announcement constituted a
substantive change in personnel policy. Since ACT had national
consultation rights, the National Guard Bureau was obligated to comply
with the provisions of section 7113(b)(1) of the Statute prior to
finalizing the changes. Thus, the National Guard Bureau was required to
notify ACT and provide ACT with the opportunity to present its views and
recommendations and to consider such views or recommendations before it
issued the June 21, 1985 Memorandum. This was not done. Therefore, we
conclude that the National Guard Bureau failed to comply with its
obligation to consult under 7113(b)(1) of the Statute.
VI. Conclusion
The Authority has considered all the facts and circumstances of this
case, including the positions of the parties. The Authority concludes
that the Respondent failed to fulfill its obligation to consult with ACT
pursuant to section 7113(b)(1) of the Statute prior to issuing its June
21, 1985 Memorandum expanding its Mix-of-the-Force policy and, thus, the
Respondent violated section 7116(a)(1) and (5) of the Statute.
Therefore, the Respondent shall be ordered to provide ACT, pursuant to
its national consultation rights under section 7113 of the Statute, with
reasonable time to present its views and recommendations concerning
procedures pertaining to the impact and implementation of the expanded
Mix-of-the-Force policy. /3/
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority's and section 7118 of the Statute, the
Authority hereby orders the National Guard Bureau shall:
1. Cease and desist from:
(a) Failing to inform the Association fo Civilian Technicians (ACT)
pursuant to ACT's national consultation rights under section 7113 of the
Statute, of proposed substantive changes in conditions of employment,
and failing to provide ACT with a reasonable period of time to present
its views and recommendations regarding the proposed changes.
(b) In any like of related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide the Association of Civilian Technicians, pursuant to its
national consultation rights under section 7113 of the Statute, a
reasonable period of time to present its views and recommendations
concerning procedures pertaining to the impact and implementation of the
expanded Mix-of-the-Force policy, and thereafter, comply with the
requirements of section 7113(b)(2) of the Statute.
(b) Post at its facilities copies of the attached Notice or forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Director, Army National Guard,
and shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken by the National Guard Bureau to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days of the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C. December 18, 1986
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) This memorandum is the same memorandum as that which was the
focus of the complaint in National Guard Bureau, 22 FLRA No. 90 (1986).
(2) In National Guard Bureau, the parties stipulated to the number of
civilian technicians actually assigned to the 12 positions in 19 states
in which the union involved in that case held exclusive recognitions.
No similar facts were included in the stipulation in this case. In its
brief, the Agency has included figures similar to those stipulated to in
the previous case as well as its projections as to the "foreseeable"
impact of the new policy based on those figures and its estimates of
attrition rates. However, in any matter submitted directly to the
Authority for decision based on a stipulation of facts, the Authority
will consider only facts contained in the stipulation. See, e.g.,
General Services Administration, 6 FLRA 430 (1981).
(3) In the absence of a request by the General Counsel or ACT for a
status quo ante remedy we conclude, in the circumstances of this case,
that no such remedy is warranted. See National Guard Bureau, 18 FLRA No.
62, slip op. at 4 n.4 (1985).
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to inform the Association of Civilian Technicians
(ACT), pursuant to ACT's national consultation rights under section 7113
of the Statute, of proposed substantive changes in conditions of
employment, or fail to provide ACT with a reasonable period of time to
present its views and recommendations regarding the proposed changes.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL provide the Association of Civilian Technicians pursuant to
its national consultation rights under section 7113 of the Statute, a
reasonable period of time to present its views and recommendations
concerning procedures pertaining to the impact and implementation of the
expanded Mix-of-the-Force policy, and thereafter, comply with the
requirements of section 7113(b)(2) of the Statute.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, 1118 18th Street, NW., Room 700, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.